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Judicial lawmaking and precedent in Supreme Courts: the European Court of Justice compared to the US Supreme Court and the French Cour de Cassation

By Jan Komárek

Abstract

What does it mean for a supreme court to “make law”? When is it possible to say that its decisions are “precedents?” To what extent should a supreme court’s pronouncements be taken into account by others – lower courts and political branches? And how should these other actors reason with such precedents? This article shows how a particular approach to judicial lawmaking and precedent shapes answers to these questions and examines them in relation to the US Supreme Court and the French Cour de cassation. The findings are then used for a critical analysis of the European Court of Justice’s case law. It is suggested that while the US and French systems have found some ways of reconciling judicial lawmaking with the basic premises of their constitutional and political systems (although they are not entirely satisfactory), the EU system is still waiting for a satisfactory account of the Court’s lawmaking and precedent. The concluding part indicates directions of possible further research, which would address the problems encountered by the Court’s case law

Topics: K Law (General)
Publisher: Hart Publishing
Year: 2009
DOI identifier: 10.1017/S1528887000001658
OAI identifier: oai:eprints.lse.ac.uk:29601
Provided by: LSE Research Online
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